Judicial Review in Kenya: Purpose, Remedies and Constitutional Foundations

Judicial review is the court’s means of checking whether a public decision-maker has acted within the law. It is especially relevant where a regulator, county office, tribunal, commission or other body has made a decision that affects a person’s rights, licence, property, business or professional position. The question is not simply whether the outcome feels wrong. It is whether the decision was made lawfully, reasonably and through a fair procedure.

In Kenya, judicial review now sits within both the common-law tradition and the constitutional right to fair administrative action. That broader framework is important, but it does not make every disagreement with an administrative decision an appeal. The particular statute, decision, available remedy and procedural route must be assessed carefully.

What judicial review is—and what it is not

Judicial review is principally concerned with the legality of decision-making. A court may examine whether the decision-maker had power, used that power for a proper purpose, considered the matters the law required, followed a fair process and reached a decision that meets the applicable standard of reasonableness. It may also address a failure or refusal to make a decision where the law imposes a duty to act.

It is not a substitute for the appellate process a statute may provide. Where the real dispute concerns the correctness of findings or outcome, the available appeal or specialist forum may be decisive; the next article considers that choice.

The constitutional right to fair administrative action

Article 47 of the Constitution of Kenya makes efficiency, lawfulness, reasonableness and procedural fairness constitutional standards for administrative action. Where an action is likely to adversely affect a person’s rights or fundamental freedoms, written reasons are required. Article 23 gives the High Court authority to grant appropriate relief for a denial, violation or threat to a right or fundamental freedom, while Article 165 sets out the High Court’s jurisdiction, including supervisory jurisdiction in the terms provided by the Constitution.

The Fair Administrative Action Act gives the framework practical effect

The Fair Administrative Action Act, 2015 gives effect to Article 47. Its provisions address, among other things, notice and an opportunity to be heard, written reasons, access to information and materials needed for a fair process, judicial review grounds and the effect of available internal remedies. Section 7 identifies grounds on which a court may review administrative action or a decision, including lack of legal authority, procedural unfairness, relevant or irrelevant considerations, bias, an error of law and unreasonable delay, depending on the facts.

The Act is not a formula for challenging every disappointing outcome. A claimant must identify the precise act, omission or decision, the legal power being exercised and the material unfairness or illegality alleged. The decision letter, reasons, governing statute and record of proceedings are often more useful than a general assertion that the authority acted unfairly. Its standards operate alongside, rather than instead of, the procedure and limits in the statute governing the particular decision.

That focus improves both the challenge and the response to it. A decision-maker should be able to point to the source of authority, the information considered and the reason for the result. An affected person should be able to identify the step that caused practical prejudice. Questions framed at that level are more useful than broad allegations of unfairness because they show whether the claimed defect can be investigated and, if necessary, corrected.

The principal remedies: certiorari, prohibition and mandamus

The traditional judicial-review remedies remain useful language in Kenyan practice. Certiorari is generally sought to quash a decision that has already been made unlawfully. Prohibition is directed at preventing a body or tribunal from taking an unlawful step or continuing proceedings beyond its power. Mandamus may compel performance of a public duty where the duty is clear and the responsible body has failed or refused to act.

The Constitution also permits appropriate relief in a suitable case, which may include declarations, injunctions or other orders. Remedy is discretionary and must fit the wrong established. The court may consider delay, another adequate remedy, the impact on third parties and whether an order would serve a practical purpose.

Choose the correct route before filing

Before filing, check the governing law for any prescribed remedy and its deadline. An available objection, review or appeal can affect whether court proceedings are appropriate, and procedural rules differ according to the claim and relief sought. Do this early: an avoidable delay can narrow the practical options.

What to do after an administrative decision

• Identify the exact decision, omission or threatened action, its date and the person or body responsible.
• Obtain the enabling statute, decision letter, reasons, hearing record, relevant policy and all correspondence.
• Check for an internal review, objection or appeal, along with its deadline and any exhaustion requirement.
• Separate a complaint about the legality or fairness of the process from a complaint about the substantive merits.
• Seek advice promptly on the proper forum, remedy and evidence before a deadline passes or an irreversible step is taken.

Judicial review is a safeguard against unlawful public decision-making, not a substitute for every available appeal. A well-prepared case starts with the source of power, the record and a remedy that answers the demonstrated problem.